Navigating Australia’s Whistleblower Protection Laws

Article by Andrew Bingley

 

From 1 July 2019, Australia has been under new whistleblower protection laws.

 

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Act) makes important changes to the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth) affecting almost all companies.

 

Key Takeaways

Key reforms from the updated act include:

  • Protected disclosures may relate to matters beyond criminal breaches, including breaches of tax laws, ASIC laws and APRA laws. Conduct that is not illegal but indicates systemic issues will also be disclosable. However, the protections will not extend to disclosures about personal employment or workplace grievances such as interpersonal conflicts, transfer, promotion, or disciplinary decisions.
  • The range of people who are eligible to make protected disclosures is extended to include not only former officers, employees and suppliers of the entity in question but the family members of these people as well.
  • More people can be ‘eligible recipients’ of disclosures, including senior managers, directors and auditors; and in certain circumstances, even journalists and politicians.
  • Stronger protections for whistleblowers include anonymity, increased immunities against prosecution, and protection against detriment through victimisation.
  • Whistleblowers are no longer required to act in good faith to be protected (although they need to have reasonable grounds to suspect misconduct).

In the new whistleblower protection laws, severe civil and criminal penalties will apply to employers who breach those protections.

 

Company Compliance with Whistleblower Protection Laws

From 1 January 2020, certain companies are required to have a whistleblower policy that complies with the new section 1317AI of the Corporations Act 2001 (Cth).

Although only certain companies are required to have a whistleblower policy, we strongly recommend that all companies regulated under the new regime create or update their whistleblower policy.

The following entity types are required to comply with the new whistleblower regime:

  • public companies;
  • large proprietary; and
  • registerable superannuation entities.

To comply with section 1317AI, the policy must contain:

  • the protections available to whistleblowers;
  • how and to whom an individual can make a disclosure;
  • how the company will support and protect whistleblowers;
  • how investigations into a disclosure will proceed;
  • how the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures; and
  • how the policy will be made available.

 

Anonymous Disclosures to SRJ Walker Wayland

As SRJ Walker Wayland is classified as an eligible recipient for all clients that we perform audit or taxation services for, we have created a portal for the collections of anonymous disclosures.

We encourage clients to include the SRJ link in their whistleblower policies. This portal can be accessed online, and is also available in the footer of our main webpage:

 

Contact SRJ Walker Wayland

Please contact your SRJWW representative if you would like to discuss these whistleblower protection laws further.